Citation Nr: 9929166
Decision Date: 10/08/99 Archive Date: 10/21/99
DOCKET NO. 98-08 257A ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Jackson, Mississippi
THE ISSUE
Entitlement to service connection for peripheral neuropathy.
REPRESENTATION
Appellant represented by: Mississippi Veterans Affairs
Board
WITNESSES AT HEARING ON APPEAL
Appellant and Appellant's Wife
ATTORNEY FOR THE BOARD
L.J. Bakke, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1959 to May
1962, and from July 1962 to July 1979. This appeal arises
before the Board of Veterans' Appeals (Board) from a rating
decision in which, inter alia, service connection for
peripheral neuropathy, as the result of exposure to
herbicides, was denied.
The claims file presents medical evidence that the veteran
retired from his position as a letter carrier due to his
physical disabilities. Specifically, his treating physician,
Joseph A. Jackson, M.D., A.C.P., F.A.E.S., F.C.S.S.,
F.A.S.D.A., stated in October 1996 that he is essentially
disabled from the type of work required in his position with
the U.S. Postal Service. In addition, an October 1996
assessment by James Hewes, M.D., is of record. Dr. Hewes
opines that the veteran will not be able to do any sort of
gainful employment requiring use of the lower extremities,
that his condition is permanent, and that it is likely to be
progressive. A claim for a total disability rating due to
unemployability under 38 C.F.R. § 3.340, or, alternatively, a
claim for non-service connected pension under 38 U.S.C.A.
§ 1521 (West 1991) and 38 C.F.R. §§ 3.3 and 3.342 (1998) is
thus inferred. This matter is referred to the RO for
appropriate action.
FINDING OF FACT
The veteran has not presented competent medical evidence of a
nexus between his currently diagnosed peripheral neuropathy
and his active service, including exposure to Agent Orange.
CONCLUSION OF LAW
The claim for service connection for peripheral neuropathy,
claimed as either directly related to active service or as
secondary to inservice exposure to the herbicide Agent
Orange, is not well-grounded. 38 U.S.C.A. §§ 1110 (West
1991), 5107 (West 1998); 38 C.F.R. §§ 3.303, 3.307, 3.3.09
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran must submit evidence that the claim is well
grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-
grounded claim is a plausible claim, one which is meritorious
on its own or capable of substantiation. Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim
requires more than mere allegations that the veteran's
service, or an incident which occurred therein, resulted in
illness, injury, or death. The veteran must submit
supporting evidence that would justify the belief that the
claim is plausible. See Tirpak v. Derwinski, 2 Vet. App. 609
(1992); Grivois v. Brown, 6 Vet. App. 136 (1994).
Evidentiary assertions by the claimant must be accepted as
true for the purpose of determining if a claim is well-
grounded, except when the assertions are inherently
incredible or beyond the competence of the person making
them. King v. Brown, 5 Vet. App. 19 (1993).
Service connection may be established for disability
resulting from personal injury or disease incurred in or
aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991).
In the absence of chronicity at onset, a grant of service
connection requires evidence of continuity of symptomatology
demonstrating that a current disability was incurred in
service. 38 C.F.R. § 3.303(b) (1998). Regulations also
provide that service connection may be established where all
the evidence of record, including that pertinent to service,
demonstrates that the veteran's current disability was
incurred in service. 38 C.F.R. § 3.303(d) (1998).
The three elements of a "well grounded" claim for service
connection are (1) evidence of a current disability as
provided by a medical diagnosis; (2) evidence of incurrence
or aggravation of a disease or injury in service as provided
by either lay or medical evidence, as the situation dictates;
and, (3) a nexus, or link, between the inservice disease or
injury and the current disability, as provided by competent
medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506
(1994), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table).
The veteran has argued that his currently diagnosed
peripheral neuropathy is the result of his active service,
either indirectly, as secondary to inservice exposure to the
herbicide Agent Orange, or directly. To this end, he has
presented competent medical evidence that he is diagnosed
with a condition, described by Dr. Jackson in an October 1997
statement, as "explained peripheral neuropathy".
Acute and subacute peripheral neuropathy is presumptively
service-connected if a veteran was exposed to an herbicide
agent during active service. 38 C.F.R. § 3.309(e) (1998). A
disease associated with exposure to certain herbicide agents,
listed in 38 C.F.R. § 3.309(e) (1998), will be considered to
have been incurred in service under the circumstances
outlined in that section even though there is no evidence of
such disease during the period of service. 38 C.F.R.
§ 3.307(a) (1998). Acute and subacute peripheral neuropathy
is identified by the regulations and shall be service-
connected if the veteran served on active duty in military,
naval, or air service in the Republic of Vietnam during the
Vietnam era and was exposed to an herbicide agent, provided
the requirements of 38 C.F.R. § 3.307(a)(6) are met, even
though there is no record of such disease during service, and
provided further that the rebuttable presumption provisions
of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R.
§ 3.309 (e) (1998).
The veteran's service personnel records are not of record.
However, the veteran has testified that he served in the
Republic of Vietnam on two separate tours. Furthermore, his
DD Form 214 reveals that he received the Vietnam Campaign
medal with four overseas service bars, the Vietnam Cross of
Gallantry with Palm, and the Vietnam Service medal. Thus,
the record establishes that the veteran did serve in the
Republic of Vietnam. In addition, while the entire claims
folder is devoid of any complaints of or treatment for
exposure to Agent Orange, other than the appellant's
assertions, it does contain his sworn testimony that he was
exposed to the herbicide when spraying the substance on the
concertina wire, in order to kill the vegetation, at the
perimeter of his base. Finally, the medical evidence of
record reveals in October 1996 that the veteran did report
exposure to Agent Orange in seeking treatment for his
condition.
However, even assuming, without finding, that the veteran had
been exposed to Agent Orange, he is not entitled to the
presumption afforded by 38 C.F.R. § 3.307 for service-
connection for acute or subacute neuropathy. This is so
because Note 2 following 38 C.F.R. § 3.309(e) defines acute
and subacute peripheral neuropathy to mean "transient
peripheral neuropathy that appears within weeks or months of
exposure to an herbicide agent and resolves within two years
of the date of onset." Id. The medical evidence of record
shows that the veteran was not diagnosed with peripheral
neuropathy until October 1996-nearly 17 years following his
discharge from active service.
Notwithstanding the foregoing, the U. S. Court of Appeals for
the Federal Circuit has determined that the Veteran's Dioxin
and Radiation Exposure Compensation Standards (Radiation
Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725,
2727-29 (1984) does not preclude a veteran from establishing
service connection with proof of actual direct causation.
Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However,
where the issue involves medical causation, competent medical
evidence which indicates that the claim is plausible or
possible is required to set forth a well-grounded claim.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Thus, service
connection may still be established for the veteran's
currently diagnosed peripheral neuropathy by the more onerous
route of showing actual causation between the veteran's
active service and his currently diagnosed peripheral
neuropathy, where all the evidence establishes that the
veteran's peripheral neuropathy was incurred in service. See
38 C.F.R. § 3.303(d) (1998).
The regulations provide that certain chronic diseases will be
considered to have been incurred in service if manifested to
a degree if 10 percent or more within one year from the date
of separation from active service, where the veteran has
served for 90 days or more during a period of war, or after
December 31, 1946, even though there is no evidence the
disease existed during service. 38 C.F.R. § 3.307 (1998).
Organic diseases of the nervous system are among the chronic
diseases for which the presumption is granted. 38 C.F.R.
§ 3.309(a) (1998).
The veteran argues, in the alternative, that his peripheral
neuropathy is the result of his active service. To this end,
he has testified that the symptoms he experiences now are the
same as he experienced while on active service. Service
medical records reveal complaints of and treatment for knee
pain, foot problems, headaches, and weakness. However, these
records do not show that the veteran was diagnosed with
peripheral neuropathy in service or within the one-year
presumptive period.
Rather, service medical records reveal inservice diagnoses of
and treatment for such conditions as knee pain of
undetermined etiology, rule out chondromalacia; healing
stress fracture in the right metatarsal, bruised hamstring
tendon, right foot sprain, fractured middle phalanx of the
right little toe, right foot bruise, tension v. vascular
headaches, and acute situational adjustment and anxiety with
no disease found. His reports of medical history and
examination at entrance to and discharge from his first
period of active service, dated in, respectively, April 1959
and April 1962, reveal no neurological complaints,
abnormalities, defects, or diagnoses. While his reports of
medical history and examination at discharge from his second
period of active service, dated in March 1979, are of record,
those conducted at entrance are not. Nonetheless, reports of
medical history and examination conducted throughout his
second period of active service are of record. These are
dated in May 1976, June 1972, and April 1965. None of these
reports reveal any neurological complaints, abnormalities,
defects, or diagnoses.
Moreover, the Board notes that the veteran underwent a VA
examination in April 1980, within one year following his
discharge from active service. This report evidences no
complaints of a neurological nature. It further documents no
diagnoses, observations, or other findings of any
neurological abnormalities or defects. Following this
examination report, the earliest medical evidence of record
is dated in 1983-well beyond the one-year presumptive
period. Moreover, it is not until October 1996, as noted
above, that the medical evidence of record establishes a
diagnosis of peripheral neuropathy. At 17 years following
the veteran's discharge from active service, this is well
beyond the one-year presumptive period.
Of record is an October 1997 medical expert statement
proffered by Dr. Jackson, the veteran's treating physician.
Dr. Jackson states, in pertinent part:
[The veteran] has an explained peripheral
neuropathy. We have extensively looked
for causes of this and no etiology has
been discovered. The patient reports
that he did have exposure to agent
orange. There has been information
indicating that a peripheral neuropathy
may be one of the complications following
agent orange exposure. However, I have
no experience in this area and,
therefore, cannot address this on the
basis of direct knowledge. Nevertheless,
he clearly does have a peripheral
neuropathy, principally axonal in
character. This is most characteristic
of toxic nutritional causes. Since all
other causes have been excluded, toxic
appears to be the most likely
possibility. His previous exposure to
agent orange may indeed be the positive
factor, but I cannot state this
definitively due to lack of experience in
this particular area.
While the veteran points to this statement as evidence of a
causal nexus between the his averred exposure to Agent Orange
and his peripheral neuropathy, the Board notes the statement
is less than dispositive. First, Dr. Jackson states clearly
that he has been unable to determine the etiology of the
veteran's condition. Second, Dr. Jackson himself states he
is not qualified to address the relationship between exposure
to Agent Orange and the veteran's condition. Therefore, Dr.
Jackson's statement is not competent medical evidence and
cannot constitute the medical evidence required to establish
a causal nexus between the veteran's currently diagnosed
peripheral neuropathy and any inservice injury or disease,
including exposure to Agent Orange. LeShore v. Brown, 8 Vet.
App. 406, 409 (1995) ("a medical professional is not
competent to opine as to matters outside the scope of his or
her expertise").
The veteran and his witness have testified that the symptoms
he experiences now are the same as those he experienced in
service. He argues, in essence, that these statements
provide evidence of continuity of symptomatology. Yet, the
Board notes that competent medical evidence is still required
to etiologically relate the veteran's current diagnosis to
his post-service complaints and symptoms. Savage v. Gober,
10 Vet. App. 489 (1997) (notwithstanding the appellant's
showing of post-service continuity of symptomatology and
"noting" during service with respect to both hip and back
conditions, medical expertise is required to relate the
appellant's present arthritis etiologically to his post-
service symptoms).
The evidentiary record presents no other medical evidence or
opinions linking the veteran's peripheral neuropathy to his
exposure to Agent Orange in active service or, in the
alternative, to his active service.
The veteran has presented his own statements and that of his
witness regarding the cause of his peripheral neuropathy.
However, the record does not show that he is a medical
professional, with the training and expertise to provide
clinical findings regarding the nature and extent of his
peripheral neuropathy or its etiologic relationship to
service. Consequently, his statements and that of his
witness are credible concerning his subjective complaints and
his history; but they do not constitute competent medical
evidence for the purposes of showing a nexus between current
complaints and service. See Espiritu v. Derwinski, 2 Vet.
App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993).
As the veteran has presented no evidence, other than his own
allegations and that of his lay witness, to establish an
etiological link between his peripheral neuropathy and his
active service, his claim for service connection for
peripheral neuropathy is not well-grounded. 38 U.S.C.A.
§ 5107 (West 1991); Caluza, 7 Vet. App. at 506.
Where a claim is not well grounded, VA does not have a
statutory duty to assist a claimant in developing facts
pertinent to the claim. Nevertheless, VA may be obligated
under 38 U.S.C.A. § 5103(a) to advise the claimant of
evidence needed to complete his application. These
obligations depend on the particular facts of the case and
the extent to which VA has advised the claimant of the
evidence necessary to be submitted with a VA benefits claim.
Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). Here, the
RO fulfilled its obligation in its statement of the case and
its supplemental statement of the case, which informed the
veteran of the reasons his claims had been denied. The
veteran has not reported that any other pertinent evidence
might be available. See Epps v. Brown, 9 Vet. App. 341, 344
(1996).
ORDER
The claim for entitlement to service connection for
peripheral neuropathy is denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals